CHIEF
JUSTICE WORKMAN delivered the Opinion of the Court. JUSTICE
LOUGHRY dissents and reserves the right to file a dissenting
opinion. JUSTICE WALKER dissents and reserves the right to
file a dissenting opinion.

SYLLABUS

1.
"In determining whether to entertain and issue the writ
of prohibition for cases not involving an absence of
jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will
examine five factors: (1) whether the party seeking the writ
has no other adequate means, such as direct appeal, to obtain
the desired relief; (2) whether the petitioner will be
damaged or prejudiced in a way that is not correctable on
appeal; (3) whether the lower tribunal's order is clearly
erroneous as a matter of law; (4) whether the lower
tribunal's order is an oft repeated error or manifests
persistent disregard for either procedural or substantive
law; and (5) whether the lower tribunal's order raises
new and important problems or issues of law of first
impression. These factors are general guidelines that serve
as a useful starting point for determining whether a
discretionary writ of prohibition should issue. Although all
five factors need not be satisfied, it is clear that the
third factor, the existence of clear error as a matter of
law, should be given substantial weight." Syl. Pt. 4,
State ex rel. Hoover v. Berger,199 W.Va. 12, 483
S.E.2d 12 (1996).

2.
"'A new trial will not be granted on the ground of
newly-discovered evidence unless the case comes within the
following rules: (1) The evidence must appear to have been
discovered since the trial, and, from the affidavit of the
new witness, what such evidence will be, or its absence
satisfactorily explained. (2) It must appear from facts
stated in his affidavit that plaintiff was diligent in
ascertaining and securing his evidence, and that the new
evidence is such that due diligence would not have secured it
before the verdict. (3) Such evidence must be new and
material, and not merely cumulative; and cumulative evidence
is additional evidence of the same kind to the same point.
(4) The evidence must be such as ought to produce an opposite
result at a second trial on the merits. (5) And the new trial
will generally be refused when the sole object of the new
evidence is to discredit or impeach a witness on the opposite
side.' Syllabus Point 1, Halstead v. Horton, 38
W.Va. 727, 18 S.E. 953 (1894)." Syl., State v.
Frazier,162 W.Va. 935, 253 S.E.2d 534 (1979).

WORKMAN, C. J.

Petitioner
Scott R. Smith, Prosecuting Attorney for Ohio County, West
Virginia, brings this matter under the original jurisdiction
of this Court. Petitioner seeks a writ of prohibition against
Respondent The Honorable David J. Sims, Judge of the Circuit
Court of Ohio County, to prevent the trial court from
enforcing its order vacating Respondent Dallas Michael Acoff
s (the "Defendant") convictions for the
second-degree murder of Lemroy Coleman and the malicious
wounding of Norman Banks, and granting a new trial based on
newly-discovered evidence. Petitioner argues that the trial
court erred in finding that the Defendant was diligent in his
efforts to secure the trial attendance of Mr. Banks and that
Mr. Banks' subsequent testimony exonerating the Defendant
would have produced a different outcome at trial.

Upon
review, we find this case represents an extraordinary
circumstance where a victim and eyewitness to a homicide, who
did not testify at trial, subsequently offered testimony
exonerating the Defendant. After conducting an evidentiary
hearing on the matter, the trial court found that justice
demands that the Defendant be awarded a new trial. Because
this decision was within its sound discretion, we deny the
writ.

I.
BACKGROUND

During
the late evening hours of October 9, 2015, gunfire was
exchanged outside the American Legion bar (the
"Legion") in Wheeling, West Virginia. Lemroy
Coleman was shot in the abdomen and died. His friend, Norman
Banks, was shot in the leg.

The
Legion is located in a high crime area. It is equipped with
multiple surveillance cameras (inside and outside) that
captured footage of the events. The videos show that Mr.
Coleman and Mr. Banks were inside the Legion and they left
shortly after the Defendant arrived. The Defendant followed
them out and began firing gunshots at them from the stairs of
the Legion. When Mr. Coleman returned gunfire, the Defendant
retreated inside the Legion. Mr. Coleman and Mr. Banks
sprinted toward an alley known as "Lane E, " that
runs perpendicular to Fifteenth Street. After he was shot,
Mr. Banks was able to run to the police station at Fifteenth
and Chapline Street to summon help. Before entering the
station, Mr. Banks tossed his own firearm in the bushes in
front of the police station. He told police that
"somebody shot me in the alley. I think they killed him.
Go help him before you help me. Help him first, because I
think they killed him." The police found Mr. Coleman
mortally wounded in Lane E.

Mr.
Banks was taken to an area hospital for treatment. The police
never obtained a written or recorded statement from Mr.
Banks. After he was released from the hospital, Mr. Banks
returned to Cleveland, Ohio, to his sister's residence.
As explained more fully below, neither the State nor the
Defendant secured his attendance at trial.

The
Defendant was indicted on multiple charges. Related to this
proceeding, he was indicted on first-degree murder and
malicious assault. The trial was held in September 2016. The
Defendant testified, admitted firing shots at Mr. Coleman and
Mr. Banks, and claimed he did so in self-defense. The
critical factual dispute was whether the victims were shot by
the Defendant directly outside the Legion on Fifteenth Street
or whether they were shot moments later by a second shooter
after they fled into Lane E. The Defendant's theory of a
second shooter in Lane E was established circumstantially at
trial.[1]The State listed Mr. Banks as a potential
witness but, remarkably, he was not called to testify.

There
was no evidence of blood droplets, blood splatter, or a blood
trail on Fifteenth Street in front of the Legion leading into
Lane E. Nevertheless, the State maintained that the
Defendant's guilt was established by his admission that
he fired shots at the victims, as well as the video
surveillance of the shooting. Moreover, the medical
examiner's finding that the bullet entered Mr.
Coleman's abdomen at an elevated angle was consistent
with the Defendant having shot him from an elevated position
(the stairs of the Legion). Following a four-day jury trial,
the Defendant was found guilty of the second-degree murder of
Mr. Coleman and the malicious wounding of Mr. Banks. He was
also convicted of three counts of wanton endangerment, not at
issue here.

Prior
to trial, prosecutors mailed a document to Mr. Banks, via
United States Mail, at his sister's address, 9200 Denison
Avenue in Cleveland. Mr. Banks' sister took a picture of
the document with her phone and sent it to him via text
message. The trial court noted that it was unclear what this
document was because no copy was introduced. Nevertheless,
after receiving her text, Mr. Banks believed the document
requested his presence at trial. He called a detective and
expressed his reluctance to appear. The detective told Mr.
Banks that the issue of his trial attendance was up to the
prosecuting attorney. Apparently, in response to that
conversation, Mr. Banks called the Ohio County
Prosecutor's office. Mr. Banks said he was told by a
woman answering the phone that the prosecutor was too busy to
speak; she asked if he could call back at another time. Mr.
Banks did not initiate further contact with the
prosecutor's office and it took no steps to enforce a
valid subpoena. At trial, the Defendant objected to moving
forward without the testimony of Mr. Banks but this objection
was overruled.[2]

Following
his convictions, the Defendant filed a motion for a judgment
of acquittal and a motion for a new trial in December 2016,
which the trial court denied. With newly appointed counsel,
the Defendant filed a renewed motion for a new trial in June
2017, asserting that he had newly discovered evidence. He
located Mr. Banks, who was at that time incarcerated in Ohio.
The Defendant stated Mr. Banks would exonerate him because
Mr. Banks claimed that Jerome Saunders shot him and Mr.
Coleman in Lane E.

In
August 2017, the trial court conducted an evidentiary hearing
on the Defendant's motion for a new trial. The trial
court heard testimony from several witnesses including Mr.
Banks, Mr. Saunders, and the Defendant's trial counsel,
Martin Sheehan. Mr. Banks (who knows Mr. Saunders) testified
unequivocally that Mr. Saunders shot him and Mr. Coleman
shortly after they entered Lane E. Mr. Banks observed Mr.
Coleman fall to the ground immediately upon being shot by Mr.
Saunders. Mr. Banks turned to run and was immediately struck
by gunfire. Mr. Banks heard three or four gunshots while
fleeing the alley. Mr. Banks further testified that, although
he could always be reached at his sister's address, he
often did not reside there and did not want to testify at
trial. Mr. Banks stated he "bounced" from place to
place and, at some point, lived in a homeless shelter.

Mr.
Saunders testified and denied shooting the men. He claimed to
not even be in the area that evening but the trial court
noted his testimony was refuted by at least two witnesses who
saw Mr. Saunders in the area that night.

After
reviewing the newly discovered evidence at the evidentiary
hearing, and comparing it to the trial evidence, the trial
court granted the Defendant's motion for a new trial and
vacated his convictions for second-degree murder and
malicious wounding. The trial court made extensive findings
of fact along with credibility determinations.

As
outlined more fully below, the trial court made numerous
findings concerning the Defendant's attempts to locate
Mr. Banks. It concluded that he made diligent efforts under
the circumstances to locate Mr. Banks, interview him, and
secure his attendance at trial. The trial court also
chastised the State for failing to make any lawful attempt to
secure the attendance of Mr. Banks at the trial and reminded
the prosecutor that ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.